Will Ginsburg’s Ledbetter Play Work Twice?

In the rush of decisions that brings the Supreme Court’s year to an end, it’s easy to lose track of even important cases. In these final weeks, we’ve been looking forward to rulings on affirmative action (resolved, ambiguously, on Monday), the Voting Rights Act, and same-sex marriage. But it’s worth noting that there were two other cases decided on Monday that recalled the biggest loss—and biggest victory—of Ruth Bader Ginsburg’s career on the bench.

The subject was job discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. Six years ago, the Court threw out a case that a woman named Lilly Ledbetter brought against her long-time employer, Goodyear Tire & Rubber. Ledbetter had been paid less than her male counterparts for many years—something she didn’t know until shortly before she left the company. The Justices, in an opinion by Samuel Alito, said that she had waited too long to bring her case, and extinguished her claim on statute-of-limitations grounds.

Ginsburg wrote a strong dissent in the Ledbetter case, in which she was joined by three other Justices. She called on Congress to amend Title VII and undo the damage of the Court’s decision. She pointed out that it was unfair to force Ledbetter to sue before she knew she had been a victim of discrimination. But Ginsburg knew that Congress, not the Court, framed the meaning of any federal law. She said Congress could, and should, amend Title VII to make it clear that Ledbetter and others like her had the right to sue. “The ball is in Congress’s court,” Ginsburg said, in an opinion that she read from the bench.

Ginsburg’s timing was exquisite. In 2007, Democrats had just retaken control of the House of Representatives and were on the verge of winning the Presidency. The first bill that Barack Obama signed as President was the Lilly Ledbetter Fair Pay Act of 2009, just as Ginsburg had hoped. A framed copy of the bill, inscribed by Obama, has an honored place in Ginsburg’s Supreme Court chambers. (I tell the story of the Ledbetter case in my book “The Oath.” I also wrote about it in my recent Profile of Ginsburg in the magazine.)

The Court decided two new Title VII cases on Monday—and the plaintiffs came out as losers in both. As in Ledbetter, it was a vote of five-to-four, with the Republican appointees in the majority and the Democratic appointees in dissent. In Vance v. Ball State University, the Court narrowed the definition of “supervisor.” This is important because plaintiffs can win in Title VII cases only if they suffer discrimination from a supervisor, not from a peer in the workforce. In the other case, University of Texas Southwestern Medical Center v. Nassar, the Court cut back on the definition of “retaliation,” which is a key term underlying many Title VII cases.

Reading her dissent from the bench for herself, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, Ginsburg focussed on the real-world implications of the two new Title VII decisions. “The Court’s disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy,” she said. (My friend Garrett Epps reports that Alito rolled his eyes while Ginsburg read her dissent. I didn’t see it, but I may have missed it.)

So what to do? Ginsburg ran her Ledbetter play again. “Six years ago,” she said on Monday, “the Court read Title VII in a similarly restrictive way. In 2009, Congress corrected that error. Today, the ball lies again in Congress’s court to correct this Court’s wayward interpretation of Title VII.”

Ginsburg’s language is almost identical to her words a half dozen years ago, but the circumstances, sadly, are different. These two cases are not likely to receive the kind of attention that Ledbetter did. For one thing, they will be swamped by the other, more dramatic cases at the end of the term; for another, there is no compelling figure, like Ledbetter, to bring the cause to life.

But, most important, the politics of the day are different. In 2009, Democrats controlled sixty votes in the Senate, as well as the House of Representatives. The new President’s honeymoon was in full swing. Today, the Republican House shows little interest in the plight of victims of job discrimination; the Senate, too, has a Republican veto in the form of the filibuster. This time, Ginsburg’s call was no less eloquent, but it’s far less likely to be heard.

Photograph by Sofia Sanchez and Mauro Mongiello.

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